Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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In general, the West Virginia State Director of Health “…is empowered to establish and strictly maintain quarantine at such places as he may deem proper and forbid and prevent the assembling of the people in any place, when the state director of health or any county or municipal health officer deems that the public health and safety so demand…”  W. Va. Code § 16-3-1; see also W. Va. Code § 16-3-2 (powers of county and municipal boards of health to establish quarantine).  The State Director of Health has the power to enforce rules and regulations issued pursuant to this authority by detention and arrest.  W. Va. Code § 16-3-1.   The statutory code is silent as to a procedure to challenge a quarantine order.

There is a challenge process set out in the administrative code.  The rules and regulations for the State Board of Health specify that “the authority to implement and terminate quarantine or placarding to prevent spread of a communicable disease or to protect the public from other health hazards rests with the Commissioner [of the Bureau of Public Health].”  W. Va. Code of State Rules § 64-7-21(21.1).  The Code of State Rules sets out an administrative process for any person “affected by any rules, regulations or statutes enforceable by the bureau for public health.”  W. Va. Code of State Rules § 64-1-2; see also, W. Va. Code of State Rules § 64-7-25 (Administrative Due Process for reportable disease rules).  Under the procedural rules specific to the Bureau of Public Health, a party has the right to be represented by an attorney qualified to practice in West Virginia, but appointment of counsel is not mentioned.  W. Va. Code of State Rules § 64-1-4(4.6.a).

For tuberculosis specifically, where a person with tuberculosis is alleged to be “…uncooperative or irresponsible with regard to treatment, quarantine or safety measures, presents a health menace to others, and is in need of immediate hospitalization,” the commissioner of the Bureau for Public Health or a local health officer can apply to the court for their “…immediate involuntary commitment.”  W. Va. Code § 16-3D-9(a).  Upon the filing of the application, the court may order the “…individual named in the action to be detained and taken into custody for the purpose of holding a probable cause hearing.”  W. Va. Code § 16-3D-9(b).  “The order shall specify that the hearing be held forthwith and shall appoint counsel for the individual…”  W. Va. Code § 16-3D-9(b).

There is no right to counsel for persons subject to a quarantine order due to venereal disease.  W. Va. Code § 16-4-21.